State v. Moore, S-97-511

• Citation: 591 N.W.2d 86,256 Neb. 553
• Decision Date: 02 April 1999
• Docket Number: No. S-97-511,S-97-511
• Parties: STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.
• Court: Nebraska Supreme Court

Page 86

591 N.W.2d 86

256 Neb. 553

STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.

No. S-97-511.

Supreme Court of Nebraska.

April 2, 1999.

Syllabus by the Court

1. Postconviction: Constitutional Law: Proof. A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.

2. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.

3. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the state or federal Constitution.

4. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the movant is entitled to no relief.

5. Postconviction: Appeal and Error. A motion for postconviction relief may not be used to obtain further review of issues already litigated.

6. Constitutional Law: Criminal Law: Homicide: Lesser-Included Offenses: Jury Instructions. The U.S. Constitution does not require that the jury in a felony murder case be instructed as to lesser-included offenses where the crime, as defined by state law, does not include any lesser offenses.

7. Postconviction: Effectiveness of Counsel: Pleas: Proof. When a defendant in a postconviction motion alleges a violation of his or her constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his or her case as a result of his or her attorney's actions or inactions.

8. Trial: Appeal and Error. An issue not presented to or decided by the trial court is not an appropriate issue for consideration on appeal.

9. Constitutional Law: Death Penalty. Prolonged incarceration on death row, in and of itself, does not violate the Eighth Amendment to the U.S. Constitution.

10. Constitutional Law: Criminal Law. With reference to cruel and unusual punishment, the Nebraska Constitution does not require more than does the Eighth Amendment to the U.S. Constitution.

Edward F. Fogarty, of Fogarty, Lund & Gross, and Larry W. Myers, Omaha, for appellant.

Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

I. NATURE OF CASE

Carey Dean Moore filed a motion for postconviction relief in the district court for Douglas County. The district court denied relief, without an evidentiary hearing, and Moore appealed. For the reasons stated herein, we affirm the judgment of the district court.

II. FACTUAL BACKGROUND

In a 4-day span during August 1979, Moore robbed and murdered two Omaha taxi drivers. Moore was convicted of two counts of first degree murder, based on a felony murder theory, and was sentenced to death by a three-judge panel in 1980. We affirmed the convictions and sentence in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (Moore I ). The facts of the underlying crimes are more fully set out in that opinion.

Moore filed his first state postconviction action in 1982, alleging, inter alia, that his trial counsel was ineffective and that Nebraska's death penalty procedures were unconstitutional. On appeal, we rejected these arguments. State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984) (Moore II ).

Moore then filed a federal habeas corpus action and was granted a writ of habeas corpus based upon his constitutional challenge to Nebraska's death penalty procedures. The U.S. Court of Appeals for the Eighth Circuit affirmed the order of resentencing, and this order was reaffirmed by the Eighth Circuit on denial of rehearing. Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), rehearing denied 951 F.2d 895 (8th Cir.1991), cert. denied 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

On remand, this court determined that it would decline to itself resentence Moore, but would instead remand the cause to the state district court for resentencing. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993) (Moore III ). Moore was again sentenced to death, and on direct appeal from his resentencing, he again alleged, inter alia, that Nebraska's death penalty statutes and procedures were unconstitutional. We rejected those arguments. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), cert. denied 520 U.S. 1176, 117 S.Ct. 1448, 137 L.Ed.2d 554 (1997) (Moore IV ).

On March 3, 1997, this court set an execution date of May 9 for Moore. Moore filed the present state action for postconviction relief on April 30. On May 5, this court stayed Moore's execution in light of Reeves v. Hopkins, 102 F.3d 977 (8th Cir.1996), rev'd 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998). On the same date, the district court denied Moore's motion for postconviction relief, without an evidentiary hearing. This appeal followed, and because this is a capital case, the appeal was placed on our docket. See Neb.Rev.Stat. § 24-1106 (Reissue 1995).

III. ASSIGNMENTS OF ERROR

Moore alleges, restated, that the district court erred in (1) not concluding that Moore was denied due process of law as guaranteed to him by the 5th and 14th Amendments to the U.S. Constitution and article I, § 3, of the Nebraska Constitution because in determining innocence and guilt, the original trial court gave no consideration to lesser-included offenses to murder in the first degree and was not permitted to give consideration to lesser offenses by existing Nebraska case law; (2) not concluding that Moore was denied his right to effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution when at the original trial, his attorney allowed the waiver of a jury and thus lost the opportunity for instruction on lesser-included offenses to murder in the first degree and the right to preserve such error on appeal; (3) not concluding that Moore was denied his right to effective assistance of counsel, violating the federal and state Constitutions, when at his original trial, no defense was raised that Moore could be found guilty of a lesser offense than murder in the first degree and no particular effort was made to present evidence supporting such a theory; (4) not concluding that Moore was denied due process of law under the federal and state Constitutions because the 1995 resentencing panel failed to give Moore advance notice of which definition of the "exceptional depravity" aggravator the panel would use; (5) not concluding that Moore was denied his right to effective assistance of counsel, violating the federal and state Constitutions, at his 1995 resentencing because if a constitutionally adequate definition of "exceptional depravity" was ascertainable from the case law, his counsel failed to ascertain it; (6) applying the "exceptional depravity" aggravator which, as recited in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1995) and elaborated upon in case law and as fashioned by the sentencing court, remains vague and indefinite, in violation of the due process and freedom from cruel and unusual punishment protections provided to Moore by the 5th, 8th, and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 9, of the Nebraska Constitution; and (7) not finding that Moore has been subjected to cruel and unusual punishment, in violation of his rights under the Eighth Amendment to the U.S. Constitution and under article I, § 9, of the Nebraska Constitution, by virtue of his long confinement in isolation on death row, the repeated death warrants issued and then stayed, and the delays essentially not caused by him, but, rather, by the State.

IV. STANDARD OF REVIEW

A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. State v. Ditter, 255 Neb. 696, 587 N.W.2d 73 (1998). A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal. Id.

An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the state or federal Constitution. State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). However, an evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the movant is entitled to no relief. See id.

V. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Moore's first three assignments of error all relate to the alleged ineffective assistance of counsel at his original trial. This argument, however, has already been addressed by this court. In his first postconviction action, Moore II, Moore based his postconviction motion in part on the assertion that his trial counsel was "inadequate and incompetent." Id. at 609, 350 N.W.2d at 15. This court stated that "we have examined the record and find no evidence to support the charge of inadequate counsel." Id. at 610, 350 N.W.2d at 16.

We have repeatedly stated that a motion for postconviction relief may not be used to obtain further review of issues already litigated. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998); State v. Lytle, 224 Neb. 486, 398 N.W.2d 705 (1987)...